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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> A custody order must not be made unless the alleged offence is punishable by imprisonment and the judge is satisfied that, such an order is appropriate - (27 Sep 2017) </td> </tr> <tr> <td align="left" valign="top">The State Of Western Australia -V- Truong</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">In facts of present case, The charges against Accused are that, he attempted to unlawfully kill his wife contrary to Section 283(1) of the Criminal Code (WA) and that, he unlawfully wounded his daughter in circumstances of aggravation, namely that, he was in a family or domestic relationship with her, contrary to Section 301(1) of the Criminal Code. The maximum penalty for the first charge is life imprisonment. The maximum penalty for the second charge is 7 years' imprisonment. An issue was raised as to the Accused's fitness to stand trial. On 27 September 2017, a hearing was conducted to decide that issue. It was decided that the accused was not fit, and would not in the future be fit, to stand trial. A custody order was appropriate. Indictment was quashed and a custody order pursuant to Section 19(4) of the Criminal Law (Mentally Impaired Accused) Act, 1996 (WA) was made. Issue involved is whether a custody order is appropriate.

Section 19 of the Act, provides the procedure for proceedings in the Supreme Court and the District Court to determine fitness of an Accused to be tried. Where a judge decides that, an accused is not mentally fit to stand trial, it is then necessary to consider whether the accused may become fit within six months. If satisfied that, the accused will not become mentally fit within six months, the judge must make an order quashing the indictment or, if there is no indictment, dismissing the charge and quashing the committal without deciding the guilt of the accused and either releasing the accused or making a custody order. A custody order must not be made unless the alleged offence is punishable by imprisonment and the judge is satisfied that such an order is appropriate having regard to the considerations referred to in Section 19(5). Those considerations are: (a) the strength of the evidence against the accused; (b) the nature of the alleged offence and alleged circumstances of its commission; (c) the accused's character, antecedents, age, health and mental condition; and (d) the public interest.

If a custody order is made, the accused person must be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board established under the Act. Any such detention continues until the accused is released by order of the Governor. A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated. Section 24(3) also provides that, a mentally impaired accused person should only be detained in an authorised hospital, if the Board is satisfied that, the accused has a mental illness requiring treatment, that because of the mental illness there is a significant risk to the health or safety of the accused or another person, the accused does not have the capacity to consent to treatment and treatment can only be provided satisfactorily in an authorised hospital.

Within five working days of a custody order being made the Board must review the case of the accused and determine the place where the accused is to be detained. Until the Board determines the place where the accused is to be detailed the accused is to be detained either in an authorised hospital or a prison or detention centre. A mentally impaired accused person cannot be detained in a detention centre unless the accused is under the age of 18. The only options under Section 19(4) are unconditional release or a custody order. The court is not empowered to make an order conditionally releasing an accused person with, for example, a condition that, the person reside in a secure residential dementia facility (such facilities not being authorised hospitals or declared places for the purpose of a custody order).

Available evidence establishes a strong case that, the Accused was responsible for assaulting both his wife and daughter. The persistence of the attack upon his wife and the nature of the injuries inflicted strongly support an inference that, the accused intended to kill her. The reasons for this violent behaviour are unknown. There is nothing to suggest that, he had behaved in such a way previously. 
There is a public interest in ensuring that, the accused will not be a risk to the safety of others. This includes, in particular, members of his family. He is a relatively young man in good physical health. He continues to harbour delusional beliefs regarding his wife's fidelity. His dementia has not reached a point, where it could be reliably said that he does not pose a risk to the safety of others. There is no evidence to the effect that, if released from custody the accused would be placed in a secure dementia unit. Nor was there any evidence to the effect that, he would be made an involuntary patient in a mental health hospital. 
There is also a public interest in ensuring that, a person who is not mentally competent is humanely treated. If a custody order is made, the likelihood is that, the accused will continue to be kept in a prison. Given that dementia is not treatable he may not be eligible to be placed in a mental health hospital. Clearly prison is not the most appropriate form of accommodation for a person with the accused's level of cognitive impairment. It is unlikely that, he will receive the best possible care and management in such an environment. As his condition deteriorates, as it inevitably will, he will become increasingly vulnerable to harm from others and increasingly unable to care for himself. However, that point has not yet been reached.

The violence exhibited by the accused was severe and unprovoked. If, as is likely, it was caused by his dementia coupled with his delusional beliefs then both of those factors continue to be present.
Prison is not an optimal environment for the Accused. It is also likely that, at some point his condition will deteriorate to such a point that, he could not be adequately or humanely cared for in a prison. If he continues to be kept in a prison then it is of importance that his condition and safety is continually monitored. The Mentally Impaired Accused Review Board will be responsible for determining where the accused is kept and ensuring that he receives the appropriate level of care and management. The indictment is quashed. A custody order in respect of the accused is made pursuant to Section 19(4) of the Act.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Trial, Mental fitness, Custody order</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>